There Ought Not to Be a Law

Wendy McElroy
January 28, 2003

One danger of arguing for or against a
position is that everyone thinks you are saying, "there ought to be a
law."

Take the issue of discrimination on the basis of sex or gender as an
example. If you argue against it, people assume you want to prohibit
discrimination. If you argue for the right to discriminate, they assume
you want to return to Jim Crow laws and force women back to the kitchen.

"There ought to be a law" is the unspoken message underlying much of
public discourse. And that message makes people reluctant to listen
impartially because agreement might lead to yet another regulation.

On most of the issues I address, my underlying message is "there ought
not to be a law." This is because the issues involve personal ethics, not
public policy. The difference: Personal ethics involve moral decisions
concerning the use of your own body and property -- that is, virtue and
vice. Public policy involves those actions that threaten or violate the
rights of others -- that is, crime.

Lysander Spooner, a 19th -century legal theorist, wrote a classic
tract entitled Vices Are Not Crimes. He argued: "Vices are those acts by
which a man harms himself or his property. Crimes are those acts by which
a man harms the person or property of another." I prefer a different
wording. A vice is the bad or immoral exercise of a right, for example,
to conclude that blacks or women are subhuman and/or to refuse to
associate with them. A crime is an act you have no right to commit at all
-- for example, theft, murder, rape.

This distinction lies at the heart of the Bill of Rights, which
codified individual rights -- the right of every individual to determine
the use of his or her own person and property. The Bill of Rights
protected personal morality by telling the government to mind its own
business regarding matters of conscience. Consider the First Amendment,
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press …"

The Bill of Rights doesn't say the "establishment of a proper
religion" or "freedom of respectable speech." It protects the
right to believe and to speak, even if the ideas and attitudes expressed
are wrong, immoral. As Mark Twain would say, "Every man has the right to
go to hell by a means of his own choosing."

James Madison, often referred to as the father of the
Constitution, wrote in
The Federalist Papers: "The diversity in the faculties of men, from
which the rights of property originate, is an insuperable obstacle to a
uniformity of interests. The protection of these faculties is the first
object of government."

Today, the distinction between personal morality and public policy is
collapsing. Much of the blame rests with political correctness. This
evolved form of liberalism declares that certain ideas and attitudes are
improper and, so, should be prohibited by law. For example, because it is
improper to view women as inferior to men, discrimination against women
should be prohibited. The law should encourage correct attitudes and
discourage incorrect ones.

Political correctness stands in sharp contrast to the traditional
American value of legally respecting, not restricting, everyone's right
to their personal beliefs. The beliefs may be accurate or false, virtuous
or vicious, but everyone has the right to use their own judgment to
arrive at their own conclusions.

And the right to discriminate based on those conclusions comes from
freedom of association. That is, the right to decide whom you wish to
invite into your home. Whom you wish to hire as an employee in a business
you own. And that decision should be left to the judgment and conscience
of each human being. Not law.

The conflict between personal freedom and public policy arises when
society strongly disapproves of certain moral choices, such as
discriminating on the basis of race or gender. When a choice becomes
widely viewed as a vice, society often tells the erring individual, "you
have no right to reach this conclusion and live according to it." In
other words, "there ought to be a law."

This approach assumes that personal freedom must be restricted in
order to promote virtue: It assumes that the two are in conflict.

I believe the opposite is true. The freedom of individuals to choose,
without intrusive state regulation, is the prerequisite of morality. A
coerced "choice" does not reflect virtue, only compliance. In other
words, you cannot force a person to be moral; you can only make them
conform. True morality requires freedom and cannot exist without it.

Those who value virtue should be first in line to declare, "there
ought not to be a law" governing vice.

What there ought to be is a return to non-legal remedies for vice:
education, peer pressure, denial of membership, shaming, persuasion,
excommunication, therapy, losing face, losing business, non-violent
protest …

People who believe in both morality and freedom, as I do, should argue
vigorously for virtue without ever denying the freedom of the individual
to decide. Because without freedom there is no morality. Only social
control.

Wendy McElroy is the
editor of
ifeminists.com and a research fellow for The Independent Institute in
Oakland, Calif. She is the author and editor of many books and articles,
including the new book, Liberty for Women: Freedom and Feminism in the
21st Century (Ivan R. Dee/Independent Institute, 2002). She lives
with her husband in Canada.